Fifteen ways to avoid prosecution at the ICC

12 September 2017 by Tjitske Lingsma, The Hague (The Netherlands)

Several African governments complain that the ICC has been targeting Africans. But national authorities are by no means powerless when it comes to the court. Here are fifteen – successful - strategies that governments and allies have been using to keep the ICC off their backs.

Tjitske Lingsma is a freelance journalist working on international justice and a regular contributor to International Justice Tribune. Her new book ‘All Rise. The high ambitions of the International Criminal Court and the harsh reality’ came out earlier this month. For Justice Tribune she has compiled a tongue-in-cheek guide on how to avoid appearing in the dock in The Hague .

1. The obvious and by far the best option: Don’t commit genocide, crimes against humanity or war crimes (as the ICC is tasked only to go after perpetrators of these international crimes).

2. States: don’t join the ICC, so the court doesn’t automatically have jurisdiction, which reduces the risk of investigations on your national territory. This strategy is applied by many nations such as the United States, China, Russia, India, Syria, Sri Lanka and Myanmar.

3. If you have joined: leave. Member states are allowed to withdraw. Burundi, which is feeling the heat as the ICC opened a preliminary examination into atrocity crimes in April 2016, decided half a year later, in October, to pull out. This was clearly out of self-interest. By doing so the government tries to prevent the ICC from starting a full-blown investigation which could lead to charging individuals. The ICC has to decide before the withdrawal is active, in October 2017, to open a full investigation in Burundi.

4. Make sure you are a member of, or have good friends on the United Nations Security Council. The UNSC has the power to refer situations in countries that are not ICC-members to the court in The Hague, as it did with Sudan in 2005 and Libya in 2011. The Syrian regime for instance benefited from its good relations with Russia. In 2014 Moscow (and Beijing) blocked a UNSC referral (the other 13 were in favour).

5. On this note, the three permanent members of the UNSC, who never joined the ICC, are in a comfortable position. Clearly the United States, Russia and China won’t refer their own conflict situations and human rights violations for investigation to the ICC. Although that position might not always save them. The ICC’s Office of the Prosecution (OTP) is examining international crimes in member state Afghanistan. If it decides to do full investigations, the prosecution probably will look at accusations of atrocities by American armed forces and CIA officials in Afghanistan, and in secret CIA detention centres in Poland, Lithuania and Romania which are related to this situation.

6. Get bilateral immunity agreements with countries promising to never handover a national to the ICC. This strategy was applied by the United States. ‘The bilateral agreements sought by Washington would require states to send an American national requested by the ICC back to the U.S. instead of surrendering him/her to the ICC,’ Human Rights Watch wrote in 2003. By 2006 more than 100 countries (including Afghanistan) had signed such an agreement, said the Coalition for the International Criminal Court.

7. The United States also adopted the American Service-Members’ Protection Act, in 2002. Better known under its nickname: The Hague Invasion Act. The law ‘authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court,’ Human Rights Watch wrote.

8. This tactic seems counter-intuitive but has proven effective: self-referrals. It sounds tricky for a government to invite the ICC to come and investigate atrocities committed on its territory, especially when authorities are possibly involved. But history has proven that in case of these self-referrals, the ICC has a tendency to go after adversaries of these governments. In Uganda, the Democratic Republic of Congo and Central African Republic, for instance, rebel leaders, militia and political opponents are prosecuted by the ICC, while members of the government and security forces remain as yet untouched.

9. If they cannot avoid being charged, high profile leaders are better off cooperating with the ICC’s summons to appear and thus prevent an arrest warrant. That’s what happened in the Kenyan cases. Because the Kenyan ICC suspects Uhuru Kenyatta and William Ruto cooperated, they were not detained in The Hague and could rally against the court and campaign freely. This won them the 2013 elections from which they emerged as president and vice-president.

10. Governments can block the ICC from doing investigations. ‘We never in our life went to a country to investigate without informing the authorities and having consensus,’ ICC’s former chief prosecutor Luis Moreno-Ocampo said in an interview. Without investigations on the ground it will be harder for the prosecution to get evidence. Sudan never gave the ICC permission. Ocampo explained how the prosecution tried to do interviews among Darfur refugees in the city of Abéché in Chad. ‘But that same night, the rebels who were working for the government of Sudan, took Abéché. They said they would respect the life of international workers. But that would not count for my workers, of course. So we acted swiftly to evacuate them immediately.’

12. Witness interference. It happens in many cases before the ICC, but it was fatal for the trial against Kenyan deputy president William Ruto and journalist Joshua Sang. The presiding judge concluded: ‘The proceedings are declared a mistrial due to a troubling incidence of witness interference and intolerable political meddling that was reasonably likely to intimidate witnesses.’ His co-judge stressed Ruto and Sang weren’t involved in pressuring witnesses, but did profit from it.So far the Kenyan government hasn’t transferred any 0f the three Kenyans, charged by the ICC with threatening and bribing witnesses, to The Hague.

13. Ask the UNSC to delay investigations or a trial because these would undermine international peace and security. Article 16 of the Rome Statute says: ‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’

14. Being wanted by the ICC doesn’t mean that a powerful suspect’s freedom is over. Again, good relations are vital. Sudan’s president Omar Al Bashir, charged with genocide, crimes against humanity and war crimes in Darfur, travels all the time. Even to ICC member states such as South Africa who refuse to arrest him. Being a president Al Bashir is a successful fugitive.

15. File an admissibility challenge arguing that the ICC doesn’t have the mandate to do this case because national authorities are already working on investigations and prosecutions. Kenya tried this road, but failed. But it missed a chance there. Basically the Kenyan state wanted to make use of the principle of complementarity. The ICC is a court of last resort. It only comes into action when states are unwilling or unable to act. This means that governments have the power to take their own responsibility to investigate and prosecute perpetrators themselves, so that the ICC doesn’t even have to intervene.

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